Thursday, March 10, 2016

Hillary Clinton’s Destruction of Emails Was a Federal Crime

However, our laws have been written so as to protect government officials, and corporate executives, if and when they are prosecuted for it. This leaves considerable discretion for prosecutors and judges to let them off the hook; and, as a consequence of this rampant discretion, there are numerous similar cases that receive starkly different procedural and judicial outcomes; so that, in this, as in so many other aspects of government in the United States, our country is far more a government by persons, than it is a government by laws.

This means that the legal outcome of former Secretary of State Hillary Clinton’s attempt to destroy the evidence on the email server that she had had installed in her basement, will depend not so much on what the laws are (which are intentionally vague), but on who is investigating, reporting, and making decisions about that case.

For an elementary example showing how arbitrary our system is about such matters, consider that this case ended with no prosecution of the police officers. A former Secretary of State who is also the leading candidate for President of the United States, may be presumed to be at least as likely, as they, to avoid even weak penalties for her evidence-tampering, regardless of how heavy the legal penalties might be for what she did if the perpetrator were only a regular powerless citizen doing essentially the same thing (and this is true regardless of whether or not there were top-secret documents on that unsecure server — the feature of the case which is the almost exclusive focus of media-coverage and federal investigation about the event).

For example: if the only reason why she destroyed that evidence was in order to prevent voters from knowing her private connections to persons and organizations that her Department was doing business with, and the ‘top-secret’ matter were’t involved at all in the case, then what she was doing by deleting the records might not have been technically “criminal” at all, yet its outcome if she becomes President might be far more harmful to the nation than any lapse of state-security from unsecured private possession of top-secret information would be, or might have been.

So: on the face of it, what Secretary Clinton did was evidence-tampering and thus a federal crime, but to expect it to be prosecuted to the full extent of the law, or even at all, would seem to be unlikely.

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

US Code

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Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

[p. 1254, or p. 40 of the 122-page pdf discussing in this passage the Sarbanes-Oxley law’s changes to the criminal laws that had existed before Arthur Anderson & Co. accountants had evidence-tampered Enron’s audit-reports:] What if the documents are destroyed to guard against whatever suit might arise, without having specific litigation in mind? For example, how would the provision apply to the ongoing destruction of safety test records by a manufacturer when there is no specific plaintiff — perhaps not even a specific buyer for the product? Arguably, such upstream behavior would still fall outside the bounds of new section 1512(c).152 At the very least, Sarbanes-Oxley does little to resolve the issue. … If Andersen had been destroying audit-related documents as it went along, rather than after it learned of the SEC inquiry in October 2001, would it have been criminally liable under new section 1512(c)? Arguably not.